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TMI Blog2015 (1) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... uilding of housing projects. Assessee filed its return of income for A.Y. 09-10 on 30.09.2009 declaring total income at Rs. Nil after claiming deduction of ₹ 29,32,078/- u/s. 80IB(10) of the Act. The case was selected for scrutiny and thereafter the assessment was framed under section 143(3) vide order dated 26.12.2011 and after denying the claim of deduction u/s. 80IB, the total income was determined at ₹ 29,32,080/-. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A) who dismissed the appeal of the Assessee. Aggrieved by the aforesaid order of CIT(A), Assessee is now in appeal before us and has raised the following effective grounds;- 1.The Learned CIT (A) has erred in law and on facts of the appellant's case in confirming the action of Learned A.O. of disallowing the claim of deduction u/s 80-IB (10) of the I.T. Act 1961 on various erroneous plea. 2.Both the lower authorities have erred in law and on facts of the appellant's case in not appreciating the fact that the appellant is developing & building housing projects by fulfilling all the requirements for claiming the deduction u/s 80-IB (10) of the Act. 4. During the course of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before us. 5. Before us, ld. A.R. at the outset submitted that the issue in the present appeal is directly covered by the decision of the co-ordinate bench of Tribunal in the case of Narayan Reality Ltd. ITA No. 2293/A/12 & 2095/A/13 order dated 2.05.2014. He also placed on record, the copy of the aforesaid decision. He further submitted that since the facts of the present case are exactly similar to that of Narayan Reality, the Assessee's claim of deduction be allowed. 6. Ld. D.R. on the other hand supported the order of A.O and CIT(A). 7. We have heard the rival submissions and perused the material on record. We find that in the present case the Assessee was denied deduction u/s. 80IB(10) by ld. CIT(A) for the reason that Assessee had not sold residential houses in the housing project but had sold developed residential plots with construction up to the plinth only and thus the Assessee could not be considered as developer of housing project but was a contractor and therefore Assessee was not eligible for deduction u/s. 80IB(10) of the Act. We find that on similar facts, in the case of Narayan Reality Ltd. (supra) the issue was decided in favour of the Assessee by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed reliance on the following Tribunal decisions:- Sl.No(s) Decision in the case of. ... Reported in.... 1. DCIT vs. SMR Builders (P.)Ltd. (2012)24 Taxman.com 194 (Hyd.) 2. Sky Builders & Developers vs. ITO (2011)14 Taxman.com 78 (Indore) 3. M/s.Vardhman Builders and Developers vs. ITO ITA No.559/Ind/2010 dated 09/05/20 12 4. Raghava Estates Vs. Dy.CIT ITA Nos.248 & 49/Vizag/2009 dated 04/08/2011 5.2. He submitted that in the case of Vardhman Builders & Developers (supra) also, the assessee had entered into a separate agreement for sale of land and separate agreement for construction of housing on such land and under these facts, it was held by the Tribunal in that case that merely because of two separate agreements, the claim of the assessee for deduction u/s.80-IB (10) of the Act cannot be declined if other conditions are being satisfied. 5.3. He further submitted that in the case of DCIT vs. SMR Builders (P) Ltd. (supra) also, the facts were that the assessee had sold flats in a semi-finished stage. In that case, the AO had noted that as per the sale-deed, the assessee-company has sold undivided share of land with super-structure of semi-finished buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to the buyers and as per separate agreement, agreed for construction for completion of balance work. Hence, the facts of this case are also similar because in that case also, the land was sold separately along with partial and unfinished construction of flats and, thereafter, construction agreement was entered into to carry out the balance construction work and under these facts, it was held by the Tribunal in that case that such agreement for construction to complete the balance work is only an incidental facilitation to protect interest of the parties and therefore, the assessee is eligible for deduction u/s.80-IB(10) of the Act. Similarly, in the case of Raghava Estates vs. Dy.CIT (supra) on which reliance was placed by the Id.AR of the assessee, the facts are similar. In that case also, the assessee had sold the plots separately and thereafter, constructed the houses and under these facts, the Revenue held that the assessee has to be considered as a mere contractor and, therefore, the assessee is not eligible for deduction u/s.80-IB (10) of the Act. This goes to show that the facts in that case were identical. In that case, it was noted by the Tribunal that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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